IRS' Lois Lerner -- did she really take the Fifth?

Did Lois Lerner, embattled head of the IRS’s tax-exempt organizations office, waive her Fifth Amendment right against self incrimination in her brief appearance before the House Oversight Committee? I hate to say it, but… it’s just not clear.

Lerner sparked an intense legal debate by making a short statement proclaiming her innocence, then pleading the Fifth and walking out of the hearing room. After briefly dismissing an Inspector General’s report on the IRS scandal and congressional accusations that she had provided the committee with false information, Lerner declared:

I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.

She then asserted her Fifth Amendment privilege “not to testify or answer questions related to the subject matter of this hearing.”

If this were a criminal prosecution, there would be little debate. In criminal cases, a witness waives his Fifth Amendment right by failing to assert it in a timely manner. That is why defense lawyers often advise their clients to provide their names to investigators but not answer any other questions.

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Had Lerner voluntarily agreed to testify in a criminal case, no court would allow her to assert the Fifth Amendment after giving direct testimony that she had not done anything wrong, broken any laws, or provided false information. Prosecutors would have the right to cross-examine her about her testimony. She would not be allowed to say her piece, then point to the Constitution and clam up.

But Lerner did not voluntarily agree to testify before Congress. It took a subpoena to get her into the committee room. Furthermore, a congressional hearing is a civil proceeding, not a criminal prosecution. And in any civil proceeding, a witness can assert the right against self-incrimination whenever an answer in a deposition or direct testimony could subject the individual to criminal prosecution. This rule certainly applies to testimony before Congress.

But would a court enforce the waiver rules as strictly in a congressional hearing as in a criminal case? Probably not. There seems to be no case law directly bearing on this type of congressional hearing. Keep in mind that Lerner was not testifying in a criminal trial where the government has the greatest interest in obtaining evidence about wrongdoing. Rather, she was in front of a congressional body conducting a legislative inquiry as part of its oversight authority.

In civil matters, lawyers generally allow their clients to answer questions except for those that raise potential criminal implications. It’s called “selective invocation.” The idea is to cooperate wherever possible, to avoid being held in contempt of court for making a blanket assertion of the Fifth Amendment on matters that could not possibly lead to a criminal prosecution.

Traditionally, courts try to find remedies other than a contempt citation to deal with a problematic “selective invocation” in a civil proceeding. They may allow the decision-maker (be it a jury or, in this case, Congress) to draw an adverse inference from the witness’s invocation. Or, they may strike the self-serving testimony that preceded the invocation from the record. Courts have held that waiver of the Fifth Amendment is not to be “lightly inferred” and that “every reasonable presumption against finding waiver” should be indulged.

As Orin Kerr, an expert on criminal procedure at George Washington University, points out, “the tricky part is how to characterize Lerner’s testimony before she invoked the Fifth Amendment.” Was she simply expressing her opinion that she is innocent? Or was she asserting actual facts about a matter that could subject her to criminal prosecution by the Justice Department?

Lerner’s short statement is open to interpretation on that issue -- something that is often the case in the law.